Exhibit 3.1
AMENDED AND RESTATED
BY-LAWS
OF
REFAC OPTICAL GROUP
ARTICLE I
OFFICES
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Section 1.1. Registered Office. The registered office of the
Corporation in the State of Delaware shall be located at the principal place of
business in such state of the corporation or individual acting as the
Corporation's registered agent in Delaware.
Section 1.2. Other Offices. In addition to its registered office in the
State of Delaware, the Corporation may have an office or offices in such other
places as the Board of Directors may from time to time designate or the business
of the Corporation may require.
ARTICLE II
MEETING OF STOCKHOLDERS
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Section 2.1. Time and Place. All meetings of the stockholders of the
Corporation shall be held at such time and place, either within or without the
State of Delaware, as shall be stated in the notice of the meeting or in a duly
executed waiver of notice thereof.
Section 2.2. Annual Meeting. The annual meeting of stockholders of the
Corporation shall be held at such date, time and place, either within or without
the State of Delaware, as shall be determined by the Board of Directors and
stated in the notice of meeting.
Section 2.3. Special Meetings of Stockholders. Special meetings of
stockholders for any purpose or purposes if not otherwise prescribed by statute
or by the Certificate of Incorporation, may be called by the Board of Directors,
the Chief Executive Officer, or the Secretary and shall be called by the Chief
Executive Officer or Secretary at the request of stockholders owning a majority
of the shares of capital stock of the Corporation issued and outstanding and
entitled to vote at a meeting of stockholders. Such request shall state the
purpose or purposes of the proposed meeting. The time of any such special
meeting shall be fixed by the officer calling the meeting and shall be stated in
the notice of such meeting, which notice shall specify the purpose or purposes
thereof. Business transacted at any special meeting shall be confined to the
purposes stated in the notice of meeting and matters germane thereto.
Section 2.4. Notice of Meetings. Notice of the time and place of every
annual or special meeting of the stockholders shall be given not less than ten
nor more than sixty days before the date of the meeting to each stockholder
entitled to vote at such meeting, in the manner prescribed by Section 6.1 of
these By-Laws, except that where the matter to be acted upon is a merger or
consolidation of the Corporation, or a sale, lease or exchange of all or
substantially all of its assets, such notice shall be given not less than twenty
nor more than sixty days prior to such meeting.
Section 2.5. Quorum and Adjournment of Meetings. The holders of at
least 55% of the shares of capital stock issued and outstanding and entitled to
vote thereat, present in person, or represented by proxy, shall be requisite and
shall constitute a quorum at all meetings of the stockholders for the
transaction of business, except as otherwise provided by the Certificate of
Incorporation. If the holders of the requisite number of shares shall not be
present in person or represented by proxy at any meeting of the stockholders at
which action is to be taken by the stockholders, the stockholders entitled to
vote thereat, present in person or represented by proxy, shall have power to
adjourn the meeting from time to time without notice other than announcement at
the meeting, until holders of the requisite number of shares of stock entitled
to vote shall be present or represented by proxy. At such adjourned meeting at
which such holders of the requisite number of shares of capital stock shall be
present or represented by proxy, any business may be transacted which might have
been transacted at the meeting as originally called. If the adjournment is for
more than thirty days, or if after the adjournment a new record date is fixed
for the adjourned meeting, a notice of adjourned meeting shall be given to each
stockholder of record entitled to vote thereat.
Section 2.6. Vote Required. At any meeting of stockholders, directors
shall be elected by a plurality of votes, and all other matters shall be decided
by a vote of the holders of at least 55% of the shares of capital stock issued
and outstanding, cast by the stockholders present in person or represented by
proxy and entitled to vote, unless the matter is one for which, by express
provisions of statute, of the Certificate of Incorporation or of these By-Laws,
a greater vote is required, in which case such express provision shall govern
and control the determination of such matter.
Section 2.7. Voting. At any meeting of the stockholders, each
stockholder having the right to vote shall be entitled to vote in person or by
proxy. To determine the stockholders entitled to notice of or to vote at any
meeting of the stockholders or any adjournment thereof, the Board of Directors
may fix, in advance, a record date which shall be not more than sixty days nor
less than ten days before the date of such meeting. Except as otherwise provided
by the Certificate of Incorporation or by statute, each stockholder of record
shall be entitled to one vote for each outstanding share of capital stock
standing in his or her name on the books of the Corporation as of the record
date. A complete list of the stockholders entitled to vote at any meeting of
stockholders arranged in alphabetical order with the address of each and the
number of shares held by each, shall be prepared by the Secretary. Such list
shall be open to the examination of any stockholder for any purpose germane to
the meeting during ordinary business hours for a period of at least ten days
prior to the meeting, at the locations specified by the Delaware General
Corporation Law. The list shall also be produced and kept at the time and place
of the meeting during the whole time thereof, and may be inspected by any
stockholder who is present.
Section 2.8. Proxies. Each proxy shall be in writing executed by the
stockholder giving the proxy or his or her duly authorized attorney. No proxy
shall be valid after the expiration of three years from its date, unless a
longer period is provided for in the proxy. Unless and until voted, every proxy
shall be revocable at the pleasure of the person who executed it or his or her
legal representatives or assigns, except in those cases where an irrevocable
proxy permitted by statute has been given.
Section 2.9. Consents. The provision of these By-Laws covering notices
and meetings to the contrary notwithstanding, any action required or permitted
to be taken at any meeting of stockholders may be taken without a meeting,
without prior notice and without a vote, if a consent in writing setting forth
the action so taken shall be signed by the holders of outstanding stock having
not less than the minimum number of votes that would have been necessary to
authorize or take such action at a meeting at which all shares of stock entitled
to vote thereon were present and voted. Where corporate action is taken in such
manner by less than unanimous written consent, prompt written notice of the
taking of such action shall be given to all stockholders who have not consented
in writing thereto and who, if the action had been taken at a meeting, would
have been entitled to notice of the meeting.
ARTICLE III
DIRECTORS
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Section 3.1. Board of Directors. The business and affairs of the
Corporation shall be managed by a Board of Directors. The Board of Directors may
exercise all such powers of the Corporation and do all such lawful acts and
things on its behalf as are not by statute or by the Certificate of
Incorporation or by these By-Laws directed or required to be exercised or done
by the stockholders.
Section 3.2. Number; Election and Tenure. The number of directors shall
be fixed initially by the incorporator of the Corporation and thereafter such
number may be increased from time to time by the stockholders or by the Board of
Directors or may be decreased by the stockholders. Except as provided by law or
these By-Laws, directors shall be elected each year at the annual meeting of
stockholders. Each director shall hold office until the next annual meeting of
the stockholders and until his or her successor shall have been duly elected and
qualified, or until his or her death, or until he or she shall have resigned, or
have been removed, as hereinafter provided in these By-Laws, or as otherwise
provided by statute or the Certificate of Incorporation.
Section 3.3. Resignation and Removal. A director may resign at any time
by giving written notice to the Board of Directors or to the Chief Executive
Officer of the Corporation. Such resignation shall take effect upon receipt
thereof by the Board of Directors or by the Chief Executive Officer, unless
otherwise specified therein. Any one or more of the directors may be removed,
with or without cause, at any time by the affirmative vote of a majority of the
then existing shares outstanding at any meeting of the stockholders called for
such purpose.
Section 3.4. Vacancies. A vacancy occurring for any reason and newly
created directorships resulting from an increase in the authorized number of
directors may be filled by the vote of a majority of the directors then in
office, although less than a quorum, or by the sole remaining director, or by
the stockholders.
Section 3.5. Compensation. Each director shall receive for services
rendered as a director of the Corporation such compensation as may be fixed by
the Board of Directors. Nothing herein contained shall be construed to preclude
any director from serving the Corporation in any other capacity and receiving
compensation therefor.
ARTICLE IV
MEETINGS OF THE BOARD
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Section 4.1. Time and Place. Meetings of the Board of Directors shall
be held at such places, within or without the State of Delaware, and within or
without the United States of America, as shall be determined in accordance with
these By-Laws.
Section 4.2. Annual Meeting. Immediately after and at the place of the
annual meeting of the stockholders, or at such other place as the Board of
Directors may designate, a meeting of the newly elected Board of Directors for
the purpose of organization and the election of officers and otherwise may be
held. Such meeting may be held without notice.
Section 4.3. Regular Meetings. Regular meetings of the Board of
Directors may be held without notice, at such time and place as shall, from time
to time, be determined by the Board of Directors.
Section 4.4. Special Meetings. Special meetings of the Board of
Directors may be held at any time and place as shall be determined by resolution
of the Board of Directors or upon the call of the Chief Executive Officer, the
Secretary, or any member of the Board of Directors on two days notice to each
director by mail or on one day's notice personally or by telecopy, telephone or
telegraph. Meetings of the Board of Directors may be held at any time without
notice if all the directors are present, or if those not present waive notice of
the meeting in writing, either before or after the meeting.
Section 4.5. Quorum and Voting. A majority of the entire Board of
Directors shall constitute a quorum at any meeting of the Board of Directors and
the act of a majority of the directors shall be the act of the Board of
Directors, except as may otherwise be specifically provided by law, the
Certificate of Incorporation or by these By-Laws. If at any meeting of the Board
of Directors there shall be less than a quorum present, the director or
directors present thereat may adjourn the meeting from time to time, without
notice other than announcement at the meeting, until a quorum shall have been
obtained.
Section 4.6. Consents. Any action required or permitted to be taken at
any meeting of the Board of Directors may be taken without a meeting if all
members of the Board of Directors consent to such action in writing, and such
writing or writings are filed with the minutes of the proceedings of the Board
of Directors.
Section 4.7. Telephonic Meetings of Directors. The Board of Directors
may participate in a meeting by means of conference telephone or similar
communications equipment by means of which all persons participating in the
meeting can hear each other. Participation by such means shall constitute
presence in person at such meeting.
ARTICLE V
COMMITTEES OF THE BOARD
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Section 5.1. Designation and Powers. The Board of Directors may in its
discretion designate one or more committees. Each committee shall consist of one
or more of the directors of the Corporation. Such committee or committees shall
have duties and powers not inconsistent with the laws of the State of Delaware,
the Certificate of Incorporation, these By-Laws, and the respective resolution
or resolutions of the Board of Directors.
ARTICLE VI
NOTICES
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Section 6.1. Delivery of Notices. Notices to directors and stockholders
shall be in writing and may be delivered personally or by mail. Notice by mail
shall be deemed to be given at the time when deposited in the United States
mail, postage prepaid, and addressed to directors or stockholders at their
respective addresses appearing on the books of the Corporation, unless any such
director or stockholder shall have filed with the Secretary of the Corporation a
written request that notices intended for him or her be mailed or delivered to
some other address, in which case the notice shall be mailed to or delivered at
the address designated in such request. Notice to directors may also be given by
telegram or by telecopy.
Section 6.2. Waiver of Notice. Whenever notice is required to be given
by statute, the Certificate of Incorporation or these By-Laws, a waiver thereof
in writing, signed by the person or persons entitled to such notice whether
before or after the time stated therein, shall be deemed equivalent to the
giving of such notice. Attendance of a person at a meeting of stockholders,
directors or any committee of directors, as the case may be, shall constitute a
waiver of notice of such meeting, except where the person is attending for the
express purpose of objecting, at the beginning of the meeting, to the
transaction of any business because the meeting is not lawfully called or
convened. Neither the business to be transacted at, nor the purpose of, any
regular or special meeting of stockholders, directors or committee of directors
need be specified in any written waiver of notice.
ARTICLE VII
CHAIRMAN OF THE BOARD AND EXECUTIVE OFFICERS
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Section 7.1. Chairman of the Board and Executive Officers. At the
annual meeting of directors the Board of Directors shall elect a Chairman of the
Board (which may be an executive or non-executive position, as determined by the
Board of Directors), Chief Executive Officer, President, Secretary and Treasurer
and may elect one or more Vice Presidents, Assistant Secretaries or Assistant
Treasurers and such other officers as the Board of Directors may from time to
time designate or the business of the Corporation may require. Except for the
Chairman of the Board, no executive officer need be a member of the Board. Any
number of offices may be held by the same person, except that the office of
Secretary may not be held by the Chairman of the Board or the Chief Executive
Officer.
Section 7.2. Other Officers and Agents. The Board of Directors may also
elect such other officers and agents as the Board of Directors may at any time
or from time to time determine to be advisable, such officers and such agents to
serve for such terms and to exercise such powers and perform such duties as
shall be specified at any time or from time to time by the Board of Directors.
Section 7.3. Tenure; Resignation; Removal; Vacancies. The Chairman of
the Board and each officer of the Corporation shall hold office until his or her
successor is elected and qualified, or until his or her earlier resignation or
removal; provided, that if the term of office of any officer elected or
appointed pursuant to Section 7.2 of these By-Laws shall have been fixed by the
Board of Directors, he or she shall cease to hold such office no later than the
date of expiration of such term regardless of whether any other person shall
have been elected or appointed to succeed him or her. The Chairman of the Board
or any officer elected by the Board of Directors may be removed at any time,
with or without cause, by the Board of Directors; provided, that any such
removal shall be without prejudice to the rights, if any, of the officer so
employed under any employment contract or other agreement with the Corporation.
The Chairman of the Board or any officer may resign at any time upon written
notice to the Board of Directors. If the office of the Chairman of the Board or
any officer becomes vacant by reason of death, resignation, retirement,
disqualification, removal from office or otherwise, the Board of Directors may
choose a successor or successors to hold office for such term as may be
specified by the Board of Directors.
Section 7.4. Compensation. Except as otherwise provided by these
By-Laws, the salaries of the Chairman of the Board, if an executive, and all
officers and agents of the Corporation appointed by the Board of Directors shall
be fixed by the Board of Directors.
Section 7.5. Authority and Duties. The Chairman of the Board and all
officers as between themselves and the Corporation, shall have such authority
and perform such duties in the management of the Corporation as may be provided
in these By-Laws. In addition to the powers and duties hereinafter specifically
prescribed for the Chairman of the Board and the respective officers, the Board
of Directors may from time to time impose or confer upon any of the officers
such additional duties and powers as the Board of Directors may see fit, and the
Board of Directors may from time to time impose or confer any or all of the
duties and powers hereinafter specifically prescribed for any officer upon any
other officer or officers.
Section 7.6. Chairman of the Board. The Chairman of the Board of
Directors, who shall be a director, shall preside at all meetings of the
stockholders and at all meetings of the Board of Directors. He or she shall
perform such other duties as may be assigned from time to time by the Board of
Directors.
Section 7.7. Chief Executive Officer. The Chief Executive Officer shall
perform such duties as may be assigned to him or her by the Board of Directors,
and in the event of disability or absence of the Chairman of the Board, perform
the duties of the Chairman of the Board, including presiding at meetings of
stockholders and directors. He or she shall from time to time report to the
Board of Directors all matters within his or her knowledge which the interest of
the Corporation may require to be brought to their notice, and shall also have
such other powers and perform such other duties as may be specifically assigned
to him or her from time to time by the Board of Directors. The Chief Executive
Officer shall see that all resolutions and orders of the Board of Directors are
carried into effect, and in connection with the foregoing, shall be authorized
to delegate to the President, the Vice President and the other officers such of
his or her powers and such of his or her duties as he or she may deem to be
advisable.
Section 7.8. The President. The President shall perform such duties as
may be assigned to him or her from time to time by the Board of Directors or as
may be designated by the Chief Executive Officer. In case of the absence or
disability of the Chief Executive Officer the duties of the office shall, if the
Board of Directors or the Chief Executive Officer has so authorized, be
performed by the President.
Section 7.9. The Vice President(s). The Vice President, or if there be
more than one, the Vice Presidents, shall perform such duties as may be assigned
to them from time to time by the Board of Directors or as may be designated by
the Chief Executive Officer or President. In case of the absence or disability
of the President the duties of the office shall, if the Board of Directors, the
Chief Executive Officer or the President has so authorized, be performed by the
Vice President, or if there be more than one Vice President, by such Vice
President as the Board of Directors, the Chief Executive Officer or President
shall designate.
Section 7.10. The Treasurer. The Treasurer shall have the custody of
the corporate funds and securities and shall keep full and accurate accounts of
receipts and disbursements in books belonging to the Corporation and shall
deposit all monies and other valuable effects in the name and to the credit of
the Corporation, in such depositories as may be designated by the Board of
Directors or by any officer of the Corporation authorized by the Board of
Directors to make such designation. The Treasurer shall exercise such powers and
perform such duties as generally pertain or are necessarily incident to his or
her office and shall perform such other duties as may be specifically assigned
to him or her from time to time by the Board of Directors or by the Chief
Executive Officer, President or any Vice President.
Section 7.11. The Secretary. The Secretary shall attend all meetings of
the Board of Directors and all meetings of the stockholders and record all votes
and the minutes of all proceedings in a book to be kept for that purpose; and
shall perform like duties for any committee when required. He or she shall give,
or cause to be given, notice of all meetings of the stockholders and, when
necessary, of the Board of Directors. The Secretary shall exercise such powers
and perform such duties as generally pertain or are necessarily incident to his
or her office and he or she shall perform such other duties as may be assigned
to him or her from time to time by the Board of Directors, the Chief Executive
Officer, President or by any Vice President.
ARTICLE VIII
CERTIFICATES OF STOCK
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Section 8.1. Form and Signature. The certificates of stock of the
Corporation shall be in such form or forms not inconsistent with the Certificate
of Incorporation as the Board of Directors shall approve. They shall be
numbered, the certificates for the shares of stock of each class to be numbered
consecutively, and shall be entered in the books of the Corporation as they are
issued. They shall exhibit the holder's name and number of shares and shall be
signed by the Chief Executive Officer, President or a Vice President and the
Treasurer (or any Assistant Treasurer) or the Secretary (or any Assistant
Secretary); provided, however, that where any such certificate is signed by a
transfer agent or an assistant transfer agent, or by a transfer clerk acting on
behalf of the Corporation, and registered by a registrar, the signature of any
such Chief Executive Officer, President, Vice President, Treasurer, Assistant
Treasurer, Secretary or Assistant Secretary, may be a facsimile. In case any
officer or officers who shall have signed, or whose facsimile signature or
signatures shall have been used on any such certificate or certificates, shall
cease to be such officer or officers of the Corporation, whether because of
death, resignation, removal or otherwise, before such certificate or
certificates shall have been delivered by the Corporation, such certificate or
certificates may nevertheless be issued and delivered as though the person or
persons who signed such certificate or certificates, or whose facsimile
signature or signatures shall have been used thereon, had not ceased to be such
officer or officers of the Corporation.
Section 8.2. Lost or Destroyed Certificates. The Board of Directors may
direct a new certificate or certificates to be issued in place of any
certificate or certificates theretofore issued by the Corporation alleged to
have been lost or destroyed, upon the making of an affidavit of that fact by the
person claiming the certificate or stock to be lost or destroyed. When
authorizing such issue of a new certificate or certificates, the Board of
Directors may in its discretion and as a condition precedent to the issuance
thereof, require the owner of such lost or destroyed certificate or
certificates, or his or her legal representatives, to advertise the same in such
manner as it shall require, and to give a bond in such sum as the Board of
Directors may direct, indemnifying the Corporation, any transfer agent and any
registrar against any claim that may be made against them or any of them with
respect to the certificate alleged to have been lost or destroyed.
Section 8.3. Registration of Transfer. Upon surrender to the
Corporation of a certificate for shares, duly endorsed or accompanied by proper
evidence of succession, assignment or authority to transfer, the Corporation
shall issue a new certificate to the person entitled thereto, cancel the old
certificate, and record the transaction on its books.
ARTICLE IX
GENERAL PROVISIONS
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Section 9.1. Record Date. In order that the Corporation may determine
the stockholders entitled to notice of or to vote at any meeting of stockholders
or any adjournment thereof, or entitled to express consent to corporate action
in writing without a meeting, or entitled to receive payment of any dividend or
other distribution or allotment of any rights, or entitled to exercise any
rights in respect of any change, conversion or exchange of stock, or for the
purpose of any other lawful action, the Board of Directors may fix, in advance,
a record date, which shall not be more than sixty nor less than ten days before
the date of such meeting, nor more than sixty days prior to any other action.
Section 9.2. Registered Stockholders. The Corporation shall be entitled
to treat the holder of record of any share or shares of stock as the holder in
fact thereof and accordingly shall not be bound to recognize any equitable or
other claim to or interest in such share on the part of any other person,
whether or not it shall have express or other notice thereof, save as expressly
provided by the laws of the State of Delaware.
Section 9.3. Dividends. Dividends upon the capital stock of the
Corporation shall in the discretion of the Board of Directors from time to time
be declared by the Board of Directors out of funds legally available therefor
after setting aside of proper reserves.
Section 9.4. Checks and Notes. All checks and drafts on the bank
accounts of the Corporation, all bills of exchange and promissory notes of the
Corporation, and all acceptances, obligations and other instruments for the
payment of money drawn, signed or accepted by the Corporation, shall be signed
or accepted, as the case may be, by such officer or officers, agent or agents as
shall be thereunto authorized from time to time by the Board of Directors or by
officers of the Corporation designated by the Board of Directors to make such
authorization.
Section 9.5. Fiscal Year. The fiscal year of the Corporation shall be
fixed by the Board of Directors.
Section 9.6. Voting of Securities of Other Corporations. In the event
that the Corporation shall at any time own and have power to vote any securities
(including but not limited to shares of stock) of any other issuer, such
securities shall be voted by such person or persons, to such extent and in such
manner, as may be determined by the Board of Directors.
Section 9.7. Transfer Agent. The Board of Directors may make such rules
and regulations as it may deem expedient concerning the issue, transfer and
registration of stock. It may appoint one or more transfer agents and one or
more registrars and may require all stock certificates to bear the signature of
either or both.
Section 9.8. Corporate Seal. The corporate seal shall have inscribed
thereon the name of the Corporation and the words "Corporate Seal, Delaware".
ARTICLE X
INDEMNIFICATION
---------------
Section 10.1. Indemnification.
(a) Actions, Suits or Proceedings Other Than by or in the Right of the
Corporation. The Corporation shall indemnify any current or former director or
officer of the Corporation and may, at the discretion of the Board of Directors,
indemnify any current or former employee or agent of the Corporation who was or
is a party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the Corporation) by
reason of the fact that such person is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent (including trustee) of another
corporation, partnership, joint venture, trust or other enterprise (including
employee benefit plans) (funds paid or required to be paid to any person as a
result of the provisions of this Section 10.1 shall be returned to the
Corporation or reduced, as the case may be, to the extent that such person
receives funds pursuant to an indemnification from any such other corporation,
partnership, joint venture, trust or enterprise) to the fullest extent
permissible under Delaware law, as then in effect, against expenses (including
attorneys' fees), judgments, fines and amounts paid in settlement actually and
reasonably incurred by such person in connection with such action, suit or
proceeding, if he or she acted in good faith and in a manner he or she
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe that his or her conduct was unlawful. The
termination of any action, suit or proceeding by judgment, order, settlement,
conviction or upon a plea of nolo contendere or its equivalent, shall not, of
itself, create a presumption that the person seeking indemnification did not act
in good faith and in a manner which he or she reasonably believed to be in or
not opposed to the best interests of the Corporation, and, with respect to any
criminal action or proceeding, had no reasonable cause to believe that his or
her conduct was unlawful.
(b) Actions or Suits by or in the Right of the Corporation. The
Corporation shall indemnify any current or former director or officer of the
Corporation and may, at the discretion of the Board of Directors, indemnify any
current or former employee or agent of the Corporation who was or is a party or
is threatened to be made a party to any threatened, pending or completed action
or suit, by or in the right of the Corporation to procure a judgment in its
favor by reason of the fact that such person is or was a director, officer,
employee or agent of the Corporation, or is or was serving at the request of the
Corporation as a director, officer, employee or agent (including trustee) of
another corporation, partnership, joint venture, trust or other enterprise
(including employee benefit plans) (funds paid or required to be paid to any
person as a result of the provisions of this Section 10.1 shall be returned to
the Corporation or reduced, as the case may be, to the extent that such person
receives funds pursuant to an indemnification from any such other corporation,
partnership, joint venture, trust or enterprise) to the fullest extent permitted
under Delaware law, as then in effect, against expenses (including attorneys'
fees) actually and reasonably incurred by such person in connection with the
defense or settlement of such action or suit, if he or she acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Corporation, except that no indemnification shall be made
in respect of any claim, issue or matter as to which such person shall have been
adjudged to be liable to the Corporation unless and only to the extent that the
Court of Chancery of the State of Delaware or the court in which such action or
suit was brought shall determine upon application that, despite the adjudication
of liability but in view of all the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses which the Court of
Chancery or such other court shall deem proper.
(c) Indemnification for Expenses of Successful Party. To the extent
that a director, officer, employee or agent of the Corporation has been
successful on the merits or otherwise in defense of any action, suit or
proceeding referred to in paragraph (a) or (b) of this Section 10.1, or in
defense of any claim, issue or matter therein, such person shall be indemnified
by the Corporation against expenses (including attorneys' fees) actually and
reasonably incurred by him or her in connection therewith.
(d) Determination of Right to Indemnification. Any indemnification
under paragraph (a) or (b) of this Section 10.1 (unless ordered by a court)
shall be made by the Corporation only as authorized in the specific case upon a
determination that indemnification of the director, officer, employee or agent
is proper in the circumstances because such person has met the applicable
standard of conduct set forth in paragraphs (a) and (b) of this Section 10.1.
Such determination shall be made (1) by the Board of Directors by a majority
vote of the directors who are not parties to such action, suit or proceeding,
even though less than a quorum or (2) if there are no such directors, or if such
directors so direct, by independent legal counsel in a written opinion, or (3)
by the holders of a majority of the shares of capital stock of the Corporation
entitled to vote thereon.
(e) Advancement of Expenses. Expenses (including attorneys' fees)
incurred by an officer or director in defending any civil, criminal,
administrative or investigative action, suit or proceeding shall be paid by the
Corporation in advance of the final disposition of such action, suit or
proceeding upon receipt of an undertaking by or on behalf of such director or
officer to repay such amount if it shall ultimately be determined that such
person is not entitled to be indemnified by the Corporation as authorized in
this Section 10.1. Such expenses (including attorneys' fees) incurred by other
employees and agents may be so paid upon such terms and conditions, if any, as
the Board of Directors deems appropriate.
(f) Other Rights. The indemnification and advancement of expenses
provided by, or granted pursuant to, the other paragraphs of this Section 10.1
shall not be deemed exclusive of any other rights to which those seeking
indemnification or advancement of expenses may be entitled under any By-Law,
agreement, vote of stockholders or disinterested directors or otherwise, both as
to action in an official capacity and as to action in another capacity while
holding such office.
(g) Insurance. By action of the Board of Directors, notwithstanding an
interest of the directors in the action, the Corporation may purchase and
maintain insurance, in such amounts as the Board of Directors deems appropriate,
on behalf of any person who is or was a director, officer, employee or agent of
the Corporation, or is or was serving at the request of the Corporation as a
director, officer, employee or agent (including trustee) of another corporation,
partnership, joint venture, trust or other enterprise (including employee
benefit plans), against any liability asserted against such person and incurred
by such person in any such capacity, or arising out of such person's status as
such, whether or not the Corporation shall have the power to indemnify such
person against such liability under the provisions of this Section 10.l.
(h) Continuation of Rights to Indemnification. The indemnification and
advancement of expenses provided by, or granted pursuant to, this Section 10.1
shall, unless otherwise provided when authorized or ratified, continue as to a
person who has ceased to be a director, officer, employee or agent and shall
inure to the benefit of the heirs, executors and administrators of such a
person.
(i) Protection of Rights Existing at Time of Repeal or Modification.
Any repeal or modification of this Section 10.1 shall not adversely affect any
right or protection of an indemnified person existing at the time of such repeal
or modification.
ARTICLE XI
AMENDMENTS
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Section 11.1. By the Stockholders. These By-Laws may be altered,
amended or repealed in whole or in part, and new By-Laws may be adopted, by the
affirmative vote of the holders of a majority of the shares of capital stock
issued and outstanding and entitled to vote at any annual or special meeting of
the stockholders, if notice thereof shall be contained in the notice of the
meeting.
Section 11.2. By the Board of Directors. These By-Laws may be altered,
amended or repealed by the Board of Directors at any regular or special meeting
of the Board of Directors if notice thereof shall be contained in the notice of
the meeting.